ANDY Burnham has set out – albeit quite vaguely – his vision to extend devolution across the UK, including in Scotland.
Specifically, the (likely) Prime Minister in waiting said in a speech today that he would offer "new opportunities to extend devolution in Scotland, Wales and Northern Ireland by taking power deeper down" adding that "the people of Dundee and Bangor feel just as distant from Holyrood and the Senedd as they do from Westminster".
Burnham also said he will introduce "powers for areas undergoing industrial transition", referencing Aberdeen as one of those areas.
However, he failed to mention Scotland beyond this, with no further details given on how he plans to "extend devolution".
Perhaps if he had allowed questions from journalists afterwards, we would have been better informed.
But, of course, the lack of detail has prompted plenty of reaction.
After all, if Burnham tried to push more powers down to local government in Scotland, it would raise a set of fairly chunky legal questions as it would effectively sidestep Holyrood and open up a huge constitutional can of worms – notably with regards to the Sewell Convention.
Whilst the SNP have regularly called for more devolved powers, such a move likely isn’t what they had in mind.
The National spoke with constitutional law expert Nick McKerrell to get his views on the (as of yet vague) proposals.
“The concept, which I'm not sure Burnham would want to do, of going immediately into a fight with the Scottish Government over powers and who's got the power – I don't know if he's thought about it or not, but it's something that would probably have to happen if you wanted to try and circumvent the Scottish parliament and expand powers at a local level in Scotland,” he said.
The professor at Glasgow Caledonian University added: “The last major restructuring of local authorities in Scotland happened 30 years ago, which might be a rhetorical point some Labour people would make now. But the reality is that it was a complex and detailed process.
“If the idea is to create new structures within local authorities in Scotland – for example, the equivalent of what Burnham was in Manchester, a mayor – then that would be very unusual and complex to try and create from Westminster, because that’s clearly an area within devolved powers and would cause a remit issue.”
He went on: “Theoretically, obviously they could do it, but it would be a major challenge to the powers of the Scottish Parliament. So far, what the UK government has done is fund different projects within local authority areas or the freeport system – which is sort of a devolved issue, but it’s not really local government but more a deregulatory structure. In Scotland that’s a UK idea, but the Scottish Government is supportive of it, so it hasn’t caused the same conflict as some projects have.”
McKerrell said that creating a new structure and level of governance within Scotland without the Scottish Parliament would also likely be both legally and politically challenged.
He added: “The reserved powers model we have for devolution states that if something is not reserved in the legislation, the power is assumed to be the Scottish Parliaments.
“So if you said: ‘This mayor is now in charge of bus franchising in Dundee,’ that interferes with the powers of the Scottish Parliament, because that’s not reserved. So what you’re doing – although theoretically Westminster is sovereign – is taking powers that exist within Scotland and are run by the Scottish Parliament, and saying: ‘Now the mayor’s going to do that.’
“You might remember the SNP argued during Brexit that there was a power grab. The cover for Brexit, why that was never as clear‑cut, was that powers existed at the European Union level and then were going to come back, so it was a debate about where they should go to.”
McKerrell went on: “Here, the powers are already within the Scottish Parliament’s remit. For Westminster to say ‘Now the mayor, or the council, or the regional council, is going to do it’ – that is the legal difficulty of trying to unpick the devolved settlement that’s existed for over 25 years.”
The legal expert said, however, that the full detail of Burnham’s proposals are yet to be revealed.
“I think you’ll probably see more detail for England before Scotland, and Wales to be honest, because of that scenario,” McKerrell said.
“But it would definitely be a significant issue if he plans to do it through some structural reform.”
